New Zealand Law Society - Courts roundup 25 April - 1 May 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Rafiq v Chief Executive for the Department Of Internal Affairs [2024] NZSC 36 (19 April 2024)
Unsuccessful leave application – Self-represented R applied for leave to appeal against Judge’s decision dismissing application for review of Deputy Registrar’s decision declining to waive security for costs – Judge also declined R’s application for stay of substantive appeal pending resolution of proposed application for leave to appeal to SC –
SC said proposed appeal related to cases particular circumstances – No issue of general or public importance arose – R had not put forward anything to suggest risk of miscarriage of justice in sense required in civil cases – Application declined.
Burke v R [2024] NZSC 37 (22 April 2024)
Successful appeal from CA – Concerned scope of joint enterprise liability under s 66(2) Crimes Act 1961 in culpable homicide – In particular, at issue is what exactly secondary party to manslaughter had to foresee as probable consequence of prosecution of common unlawful purpose formed with principal offender –
Here, B and W, both associated with Nomads gang – Both tasked with punishing victim, H, who had been disrespectful to gang President – Punishment to consist of “mean hiding” but, in fact, W repeatedly stabbed H and he died as result – B guilty of manslaughter – Trial Judge directions meant conviction under s 66(2) possible if B did not know that W had knife and if B only foresaw assault likely to cause non-trivial harm – Sentenced to five years two months’ imprisonment –
CA dismissed B’s appeal against conviction – SC granted leave to appeal against conviction – Approved question was whether CA correctly interpreted and applied s 66(2) –
B advanced his appeal on two grounds: First said trial Judge should have directed jury that conviction under s 66(2) only open if they were satisfied B knew stabbing (or act of its type) probable consequence of prosecuting common purpose; second alternative ground if first ground not accepted – B said Judge should have directed jury that conviction under s 66(2) only open if were satisfied B knew unlawful killing probable consequence of prosecuting common purpose – There was degree of overlap between two grounds –
SC unanimously allowed appeal against conviction, majority under first ground, two judges under second ground – Appeal allowed.
Dai v Professional Conduct Committee, New Zealand Institute of Chartered Accountants [2024] NZSC 38 (22 April 2024)
Unsuccessful leave application – Self-represented D sought leave to appeal from CA judgment declining application to stay execution of HC costs judgment and upholding Deputy Registrar decision not to waive filing fee nor dispense with security for costs –
SC said D’s litigation started off on wrong foot and continued in that fashion all way to SC notice of appeal – Court makes plain that core of her complaint concerned substance of Tribunal decision but, among other missteps, proceeding challenges only referral decision –
In confined context of interlocutory appeal, no question of general or public importance arose – Further, did not appear on extensive material D provided to Court, to involve any risk of substantial miscarriage of justice or matter of general commercial significance – Moreover, as substantive appeal abandoned in CA, D’s intended appeal to SC on procedural questions moot – Application declined.
M (SC 13/2023) v R [2024] NZSC 29 (23 April 2024)
Appeals raised issues about way youth justice principles interacted with open justice in decisions about name suppression under ss 200 and 202 Criminal Procedure Act 2011 – Section 200 set out when court could make suppression order prohibiting publication of defendant’s name and other identifying particulars in criminal proceedings – Section 202(1)(c) provided for court to make suppression order regarding person connected with defendant –
LF pleaded guilty to 10 sexual offending charges relating to six victims and sentenced to 12 months’ home detention – LF autistic person aged between 14 and 17 when offending took place – Charges laid in Youth Court where LF’s name automatically suppressed – But some charges had to be transferred to District Court because LF 17 years old at time of incidents, giving rise to these charges and charges included sexual violation – Further, Crown successfully applied to have LF brought before District Court for sentencing by which point he was 18 years old –
LF applied for name suppression saying publishing name would be likely to cause him extreme hardship and/or endanger his safety under ss 200(2)(a) and (e) Sentencing Act – Name suppression also sought for M under s 202(1)(c) as person connected with offender – Argued publishing M’s name likely to cause them undue hardship – LF argued his name should be suppressed because likely to lead to identifying M as person whose name was suppressed (s 200(2)(f)) –
DC declined LF’s name suppression application and HC declined on first appeal – Regarding s 200(2)(a), both Courts said extreme hardship threshold not met – While both Courts said LF met endangering safety threshold due to risks relating to mental health issues, taking into account principle of open justice, seriousness of offending and high public interest, both Courts concluded that balancing exercise s 200(1) required did not favour name suppression –
CA declined to grant LF leave to bring second appeal – In HC both M’s application for name suppression and LF’s additional basis for suppression under s 200(2)(f) declined – On appeal, CA said M reached threshold for suppression under s 202(2)(a) and ordered permanent suppression of M’s name in connection with LF’s offending – However, CA agreed with HC suppressing LF’s name unnecessary to prevent M’s identification –
SC granted LF leave to appeal over whether HC correct to decline to grant permanent name suppression – SC said exceptional circumstances permitting appeal directly from HC essentially because of need to address youth justice principles as they arose in name suppression decisions – SC granted M leave to appeal on whether CA correct to dismiss part of M’s appeal relating to suppression of LF’s name –
SC unanimously dismissed both appeals – Consequently LF not granted permanent name suppression – M retained name suppression under s 202(2)(a) –
Was first time SC specifically addressed importance of youth justice principles and how they interacted with open justice – SC said those principles primary consideration to be given powerful weight when assessing name suppression under s 200 – Courts had to therefore carefully assess what those principles required in terms of name suppression where youth involved – Given statutory framework, open justice remained starting point – SC said to go further, as LF and M submitted and impose presumption of name suppression would be inconsistent with Act’s scheme – Presumption would require specific statutory provision by Parliament – Appeals dismissed.
Kaye v Norris Ward McKinnon [2024] NZSC 39 (23 April 2024)
Unsuccessful recall application – Self-represented K sought leave to recall SC judgment of 3 December 2021 declining to grant extension of time to apply for leave to appeal (the 2021 judgment) – Application “for some other very special reason justice requires that the judgment be recalled” –
SC said K essentially wanted to reargue their claim with view to achieving different outcome – Not basis for recall but rather, in substance, attempt to relitigate SC earlier decision to decline leave – Nothing advanced which met test for recall of either that decision or 2021 judgment – Application declined.
Hojsgaard v Registrar-General of Land [2024] NZSC 40 (23 April 2024)
Unsuccessful leave application – H applied for leave to appeal from CA decision dismissing appeal from HC decision refusing to grant H compensation under s 58 Land Transfer Act 2017 – Section 58(1) provided for payment of compensation for loss or damage arising from either: (a) error or wrongful act or omission of Registrar … ; or (b) failure or malfunction of system or facility used to keep register under s 9 –
SC said CA concluded system failures H relied upon were outside s 58(1)(b) – Not failures of system used to maintain register under s 9 – Rather, related to “the processes followed in assessing and approving cadastral survey data under the Cadastral Survey Act and decisions about the storage of cadastral survey data and access to that data” –
SC said prospects of success of proposed appeal on this ground insufficient to warrant grant of leave where claim would ultimately be to make Registrar liable for surveying error outside Registrar’s purview – In any event, as CA noted, H would still face causation problems relating to other requirements of s 58 – No appearance of miscarriage of justice as term used in civil proceedings – Leave criteria not met – Application dismissed.
R v [W] [2024] NZCA 127
Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZCA 128
Unsuccessful appeal - The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions issued a minute stating the Commission’s interpretation of its terms of reference led it to conclude that the activities of the Jehovah’s Witnesses were within the scope of the Commission’s inquiry - The Commission’s terms of reference were later amended to expressly state that this was the case - The appellant, on behalf of the Jehovah’s Witnesses organisation in New Zealand, sought judicial review of both the Commission’s initial interpretation of its terms of reference, as set out in Minute 16, and the lawfulness of the amendment to the terms of reference - The HC dismissed all causes of action - Whether the HC erred in finding that the Commission had not exceeded its terms of reference - Whether the HC erred in finding that the amendment to the terms of reference was not targeted at the Jehovah’s Witnesses in breach of their rights under s27 New Zealand Bill of Rights Act 1990 and therefore promulgated with an unlawful purpose - HELD: Appeal dismissed - The terms of reference provided a detailed definition of “in the care of faith-based institutions” in cl 17.4 - Whether an individual is in the care of a faith-based institution is a question of degree and bright-line distinctions are not likely to be able to be drawn - Whilst the activities of the Jehovah’s Witnesses may not have been the intended primary focus of the terms of reference, they are not, by definition, excluded from the scope of the Commission’s inquiry - Additionally, the Commission was entitled to undertake its investigations in the course of carrying out its function even if there was no suggestion that the Jehovah’s Witnesses had been involved in the abuse of children - The Commission was entitled to pursue the lines of inquiry that it did, including for the very purpose of determining whether the matters it identified were appropriately addressed as part of its report - The amendment to the terms of reference was lawfully made - There is no infringement of the s27 right simply because judicial review proceedings are on foot - It is legitimate to amend the terms of reference to clarify issues in dispute as they arise.
[H] v R [2024] NZCA 131
[W] v R [2024] NZCA 137
R v Towler [2024] NZHC 870 (19 April 2024) Jagose J
Sentencing – Sentencing on conviction after jury trial for motor manslaughter – Starting point five years' imprisonment based on consistency with cases of similar act offending and aggravating factors – Factors to take into account include, highly culpable driving (aggressive driving), habitually driving below acceptable standard (driving without ever having held licence and while forbidden) and irresponsible behaviour (throwing victim from bonnet of car by swerving to escape and failing to stop) – Discounts granted for mitigating factors: preparedness to plead guilty, fledgling rehabilitative steps and impact of custody on defendant's children and remorse – End sentence three years three months' imprisonment.
R v Wright-Meldrum [2024] NZHC 872 (19 April 2024) Dunningham J
Sentencing – W-M and H sentenced after jury trial of B’s murder in 1995 – Both sentenced to life imprisonment with MPI 10 years.
R v Rapson [2024] NZHC 910 (23 April 2024) Dunningham J
Sentencing – Three and half years' imprisonment for manslaughter – One year's imprisonment on each of two driving dangerously causing injury – Remaining charges convicted and discharged.
Minister For Children v The Waitangi Tribunal [2024] NZHC 931 (24 April 2024) Isac J
Successful judicial review application – Minister sought judicial review of Tribunal summons in context of Tribunal urgent inquiry, requiring her to attend and give evidence at hearing on 26 April 2024 –
HC accepted Minister’s submission that Tribunal power to summons serving Minister may, in appropriate cases, be constrained by comity requirements – However, three constitutional principles engaged which pull in different directions – Other two relevant here were rule of law and separation of powers – Each to be considered here –
Application granted – Tribunal summons set aside – Decision did not diminish Tribunal mana and importance of its work.
Harder v Worksafe New Zealand [2024] NZHC 940 (26 April 2024) Grice J
Self-represented H applied for pre-proceedings discovery and/or examination of lawyers involved in Pike River Mine tragedy for purposes of intended recall of judgment – Decision intended to be recalled had granted access to all documents on court file relating to successful judicial review in SC concerning withdrawing prosecution of Pike River Coal Ltd director and paying reparation to victims and families of victims – Three issues set down for Court to determine: whether court has jurisdiction; whether applicant not party to proceeding nor otherwise involved in Judicial Review proceedings had standing; and whether application procedurally improper and abuse of process –
HC said H had standing to bring specific application, as standing already been established in recall application – No jurisdiction to grant applications in context of underlying intended application and is improper use of court process – Pre-proceedings discovery and examination processes not available in intended recall and access to court documents regime – Applicant successful in application for access to all court documents – Present applications directed at re-opening Pike River Mine and suggested finance source, although no such specific claims presently contemplated – Not proper use of court processes – Limited interim non-publication of persons referred to ordered – Applications declined.
R v DF [2024] SCC 14 (22 April 2024)
Successful appeal from Ontario CA – Dealt with whether judge in criminal trial made mistake understanding and treating key parts of complainant’s evidence “misapprehending” in manner that led him to unfairly convict accused –
DF accused of sexual assault, sexual interference (touching someone under age of 16 for sexual purpose) and making sexually explicit material available to child – Complainant eight years old at time of alleged offences – Offences allegedly took place while accused spending day and evening at complainant’s mother’s house – Mother testified had been at house all day and evening except when she briefly stepped out to nearby store after dinner – DF stayed behind with complainant and her two younger siblings –
At trial, some inconsistencies in complainant’s testimony under cross-examination regarding whether or not her mother home when alleged sexual touching happened – Trial judge said minor inconsistencies resulted from complainant’s immaturity and confusion and that she was otherwise credible and reliable – Trial judge also said other witnesses credible and reliable, including complainant’s mother, who testified that except for her trip to store, she had been around children all evening and did not observe any wrongdoing – Based on evidence as whole, trial judge satisfied beyond reasonable doubt of DF’s guilt and convicted him –
DF appealed convictions – Ontario CA majority dismissed appeal on making sexually explicit material available to child, but allowed appeal of other two convictions – Said trial judge misapprehended complainant’s evidence on whether or not mother home at time of alleged sexual touching – Mistake related to important issue at trial and played essential role in trial judge’s reasoning process leading to convicting DF – Said that trial judge did not sufficiently address inconsistencies between complainant’s evidence and her mother’s in decision to convict – Majority ordered convictions for sexual assault and sexual interference be set aside and new trial be held on those counts –
One judge disagreed and would have dismissed DF’s appeal entirely – Said trial judge did not make any errors in assessing evidence – Said trial judge recognised complainant’s evidence regarding mother’s location at time of offences inconsistent but had not relied on it to convict DF – Rather, trial judge had correctly applied common sense approach to assessing evidence of child witnesses to determine she was credible and reliable witness overall – Said trial judge’s reasons sufficiently explained why he was satisfied beyond reasonable doubt accused committed offences –
Crown appealed to SC – SC allowed appeal and restored DF’s convictions.
R (on the application of AM (Belarus)) v Secretary of State for the Home Department [2024] UKSC 13 (24 April 2024)
Successful appeal from CA – Issue in appeal is whether Home Secretary refusal to grant leave to remain (LTR) to individual, who could not be removed to their country of nationality, violated individual’s right to respect for private and family life under article 8 of European Convention on Human Rights (ECHR) –
AM, Belarusian national, arrived in United Kingdom (UK) in 1998 and claimed asylum – Asylum claim refused in December 2000 and, following unsuccessful appeals, AM removed to Belarus on 29 June 2001 – However, when examined upon arrival, AM provided false information which led Belarussian authorities to believe that he was not Belarus citizen – Refused entry and returned to UK – AM convicted of various offences in UK and qualified as foreign criminal under Nationality, Immigration and Asylum Act 2002 – Home Secretary, wanted to extradite him to Belarus – However, AM not cooperative and successfully managed to thwart Home Secretary’s efforts to remove him –
AM remained in UK, but without any grant of LTR – Left AM with “limbo” status – Consequences of limbo status that (1) no permission to work in UK; (2) did not have full access to NHS; (3) disqualified from entering into tenancy agreement and opening bank account; and (4) received only very limited social welfare benefits at same level as any failed asylum seeker awaiting removal from UK –
On 15 September 2010 – AM applied for judicial review of Home Secretary’s failure to provide him with LTR or permission to work in UK – Home Secretary subsequently agreed to reconsider AM’s asylum claim and HC stayed judicial review proceedings – Home Secretary again refused AM’s asylum claim – AM’s appeal against refusal dismissed – On 9 February 2017, AM applied to Home Secretary for LTR as stateless person – This was also refused – In July 2018, AM successfully applied for permission to restore judicial review proceedings – Also successfully applied to add second ground challenging refusal to grant him LTR on statelessness grounds –
Throughout process AM suffered from ill-health – In early 2018, diagnosed with psychotic symptoms – Evidence adduced that mental health also adversely affected by delays in resolving case and his limbo status – While in detention, AM made efforts to harm himself and attempted suicide –
On 11 February 2021 Upper Tribunal dismissed AM’s challenge to Home Secretary’s determination AM not stateless, but upheld AM’s claim refusal to grant him LTR (with permission to work) violated his rights under article 8 ECHR – Home Secretary appealed to CA violation of article 8 finding – AM did not appeal statelessness issue – CA dismissed Home Secretary’s appeal – Home Secretary appealed to SC –
SC unanimously allowed appeal – Said, among other things, AM’s own conduct thwarting Home Secretary’s attempts to remove him to Belarus highly material factor for relevant proportionality analysis under article 8 – Even though unlikely that AM could in practice be removed to Belarus, public interest in maintaining effective immigration control system and containing welfare costs remained relevant considerations – Did not follow that where individual capable of thwarting his or her removal indefinitely and is plainly intent on doing so Home Secretary became obliged under article 8 to grant them LTR – Appeal allowed.